AN ARBITRATION UNDER CHAPTER 11 OF THE NAFTA · AN ARBITRATION UNDER CHAPTER 11 OF THE NAFTA ... Written Submissions ... which the Claimant shall submit a Memorial and the Respondent

AN ARBITRATION UNDER CHAPTER 11 OF THE NAFTA AND THE UNCITRAL ARBITRATION RULES, 1976

between

ELI LILLY AND COMPANY

Claimant

and

GOVERNMENT OF CANADA

Respondent

(CASE NO. UNCT/14/2)

PROCEDURAL ORDER NO. 1

ARBITRAL TRIBUNAL:

Professor Albert Jan van den Berg (President)

Sir Daniel Bethlehem QC

Mr. Gary Born

26 May 2014

Eli Lilly and Company v. Government of Canada

(Case No. UNCT/14/2)

Procedural Order No. 1

2

Contents

Background .................................................................................................................... 4 1.

The Disputing Parties and their Representatives ............................................................ 4 2.

The Arbitral Tribunal ....................................................................................................... 6 3.

Administering Authority and Secretary of the Tribunal .................................................... 7 4.

Legal Seat of the Arbitration ........................................................................................... 8 5.

Applicable Substantive Law ............................................................................................ 8 6.

Applicable Procedural Rules .......................................................................................... 8 7.

Procedural Language, Translation and Interpretation ..................................................... 9 8.

Bifurcation ...................................................................................................................... 9 9.

Written Submissions ................................................................................................... 9 10.

Exhibits and Legal Authorities ....................................................................................11 11.

Document Production ................................................................................................12 12.

Witnesses ..................................................................................................................14 13.

Experts ......................................................................................................................16 14.

Procedural Requests .................................................................................................16 15.

Notifications and Communications .............................................................................17 16.

Non-Disputing NAFTA Parties ...................................................................................17 17.

Amici ..........................................................................................................................18 18.

Calendar ....................................................................................................................18 19.

Status of Orders .........................................................................................................18 20.

Fees and Expenses of the Members of the Arbitral Tribunal ......................................18 21.

Apportionment of Costs and Advance Payments .......................................................19 22.




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Pre-Hearing Conference ............................................................................................19 23.

Record of Hearings ....................................................................................................19 24.

Post-Hearing Memorials and Statements of Costs .....................................................20 25.

Quorum .....................................................................................................................20 26.

Decisions of the Arbitral Tribunal ...............................................................................21 27.

Time Limits ................................................................................................................21 28.

Confidentiality and Privacy .........................................................................................21 29.

Publication .................................................................................................................21 30.

Disposal of the Record ...............................................................................................22 31.

Immunity from Suit .....................................................................................................22 32.

Annex A ...............................................................................................................................23

Annex B ...............................................................................................................................24




4

BACKGROUND 1.

Following the first procedural hearing held on 10 May 2014 and submissions of the 1.1

Disputing Parties on procedural matters, the Arbitral Tribunal issues the present Order.

THE DISPUTING PARTIES AND THEIR REPRESENTATIVES 2.

Article 4 UNCITRAL Arbitration Rules (1976)

The Claimant is: 2.1

Eli Lilly and Company

893 S Delaware St.

Indianapolis, IN 46285

United States

(“Eli Lilly” or “the Claimant”)

The Claimant is represented in this arbitration by:

Richard G. Dearden

Wendy J. Wagner

Gowling Lafleur Henderson LLP

160 Elgin Street, Suite 2600

Ottawa, Ontario K1P 1C3

Canada

Tel: + 1 613 786 0135

Fax: + 1 613 788 3430

[email protected]

[email protected]

Marney L. Cheek

John K. Veroneau

Alexander A. Berengaut

James M. Smith

Covington & Burling, LLP

1201 Pennsylvania Avenue, NW

Washington, D.C. 20004-2401

United States

Tel: +1 202 662 5267

Fax: +1 202 778 5267

[email protected]

mailto:[email protected]






5

[email protected]

[email protected]

[email protected]

All correspondence and documents in this arbitration will be delivered to the addresses

of counsel for the Claimant.

The Respondent is: 2.2

The Government of Canada

Office of the Deputy Attorney General of Canada

284 Wellington Street

Ottawa, Ontario KIA 0H8

Canada

(“Canada” or “the Respondent”)

The Respondent is represented in this arbitration by:

Ms. Sylvie Tabet, General Counsel and Director

Mr. Christophe Douaire de Bondy, Deputy Director and A/Senior Counsel

Mr. Maxime Dea, Counsel

Mr. Adrian Johnston, Counsel

Ms. Yasmin Shaker, Counsel

Trade Law Bureau (JLT)

Foreign Affairs, Trade and Development Canada

125 Sussex Drive

Ottawa, Ontario K1A 0G2

Canada

Tel: +1 343 203 2224

Fax: +1 613 944 5857

[email protected]

[email protected]

All hard copy correspondence and documents in this arbitration will be delivered to the

attention of Mr. Douaire de Bondy at the address of counsel for the Respondent and all

email correspondence will be delivered to both of the e-mail addresses listed above.

Any change or addition to a Disputing Party’s representatives listed above shall be 2.3

promptly notified in writing by that Disputing Party to the other Disputing Party, the

Arbitral Tribunal and the Tribunal Secretary.








6

THE ARBITRAL TRIBUNAL 3.

Section II UNCITRAL Arbitration Rules (1976); Article 1123 NAFTA

The Arbitral Tribunal is composed of: 3.1

Professor Albert Jan van den Berg

Hanotiau & van den Berg

IT Tower, 9th Floor

Avenue Louise 480 B.9

1050 Brussels

Belgium

Tel: +32 (0)2 290 3913

Fax: +32 (0)2 290 3942

[email protected]

Mr. Gary Born, Partner

Wilmer Cutler Pickering Hale and Dorr LLP

49 Park Lane

London, England W1K 1PS

United Kingdom

Tel: +44 (0)20 7872 1020

Fax: +44 (0)20 7839 3537

[email protected]

Sir Daniel Bethlehem KCMG, QC

20 Essex Street

London, England WC2R 3AL

United Kingdom

Tel: +44 (0)20 7842 1200

Fax: +44 (0)20 7842 1268

[email protected]

Each arbitrator is and shall remain at all times impartial and independent of the 3.2

Disputing Parties. Each arbitrator has provided the Disputing Parties with a signed

Statement of Independence.

The Disputing Parties confirm that the Arbitral Tribunal has been duly constituted in 3.3

accordance with Article 1123 of the NAFTA. The Disputing Parties have no objections

whatsoever to the constitution of the Arbitral Tribunal or to the appointment of any

Member of the Arbitral Tribunal in respect of matters known to them on the date of this

Procedural Order.







7

In order for the Members of the Arbitral Tribunal to continue to fulfill their disclosure 3.4

obligations, the Arbitral Tribunal seeks the cooperation of each Disputing Party in

promptly drawing to the Arbitral Tribunal’s attention any such circumstances known to

that Disputing Party in respect of which it considers that further information would be

appropriate as soon as such circumstances become known to that Disputing Party.

ADMINISTERING AUTHORITY AND SECRETARY OF THE TRIBUNAL 4.

ICSID Administrative and Financial Regulation 25

By letter of April 10, 2014, the Disputing Parties confirmed their agreement to 4.1

designate the Secretariat of the International Centre for Settlement of Investment

Disputes (“ICSID”) as the administering authority. ICSID shall render full administrative

services in relation to this arbitration.

Further to the designation of ICSID as administering authority in this matter, an ICSID 4.2

Secretariat legal counsel has been designated as the Secretary of the Arbitral Tribunal.

The Secretary of the Arbitral Tribunal is and shall remain at all times impartial and

independent of the Disputing Parties.

To send copies of communications by email, mail, and courier/parcel deliveries to the 4.3

ICSID Secretariat, the contact details are:

Lindsay Gastrell

ICSID – The World Bank

MSN J2-200

1818 H Street, N.W.

Washington, D.C. 20433

United States

Tel.: + 1 (202) 473-5018

Fax: + 1 (202) 522-2615

Email: [email protected]

For local messenger deliveries, the contact details are:

Lindsay Gastrell

701 18th St, NW (“J Building”)

2rd Floor

Washington, D.C. 20006

Tel.: + 1 (202) 473-5018




8

LEGAL SEAT OF THE ARBITRATION 5.

Article 16 UNCITRAL Arbitration Rules (1976); Article 1130 NAFTA

The legal seat of the arbitration shall be Washington, D.C. 5.1

The Arbitral Tribunal may, in its discretion, convene hearings at any location other than 5.2

the seat of arbitration and will decide on such location after hearing the Disputing

Parties and taking into account all relevant circumstances.

APPLICABLE SUBSTANTIVE LAW 6.

Article 33 UNCITRAL Arbitration Rules (1976); Article 1131 NAFTA

Article 1131 of the NAFTA provides that: 6.1

Article 1131: Governing Law

1. A Tribunal established under this Section shall decide the issues in dispute in accordance with this Agreement and applicable rules of international law.

2. An interpretation by the Commission of a provision of this Agreement shall be binding on a Tribunal established under this Section.

APPLICABLE PROCEDURAL RULES 7.

Article 1 UNCITRAL Arbitration Rules (1976); Articles 1120(1)(c), 1120(2), 1139 NAFTA

The procedure in this arbitration shall be governed by the UNCITRAL Arbitration Rules 7.1

(1976) except as modified by the provisions of Section B of Chapter 11 of the NAFTA

(per Article 1120(2) of the NAFTA).

If these provisions and rules do not address a specific procedural issue, the Arbitral 7.2

Tribunal shall, after consultation with the Disputing Parties, determine the applicable

procedure. In addition, the Arbitral Tribunal may seek guidance from, but shall not be

bound by, the 2010 IBA Rules on the Taking of Evidence in International Commercial

Arbitration.




9

PROCEDURAL LANGUAGE, TRANSLATION AND INTERPRETATION 8.

Articles 17 and 25(2) UNCITRAL Arbitration Rules (1976)

The proceedings shall be conducted in English. 8.1

All documentary evidence and legal authorities in a language other than English shall 8.2

be submitted in the original along with a translation to English. Whenever lengthy

documents need to be translated, the translation may be limited to the relevant

passages together with such other portions of the document as may be necessary to

put those passages in proper context. Each Disputing Party shall bear its own cost of

translations. Translation of documents into English need not be certified. However, if a

dispute arises as to the accuracy of a translation, the matter shall be decided by the

Arbitral Tribunal. For ease of reference, the Disputing Parties shall paginate any

translation in the same way as the original document.

Witness testimony in a language other than English shall be interpreted simultaneously 8.3

to English. The costs of the interpreter(s) will be paid from the advance payments

made by the Disputing Parties, without prejudice to the decision of the Arbitral Tribunal

as to which Disputing Party shall ultimately bear those costs. The Disputing Parties

shall notify the Arbitral Tribunal no later than the pre-hearing conference which

witnesses and/or experts will require interpretation.

BIFURCATION 9.

Liability and damages shall be dealt with in two separate phases in these proceedings. 9.1

WRITTEN SUBMISSIONS 10.

Articles 15(3), 18-20, 22 UNCITRAL Arbitration Rules (1976)

The Claimant shall submit a letter designating their Notice of Arbitration as the 10.1

Statement of Claim and the Respondent shall submit a Statement of Defence, following

which the Claimant shall submit a Memorial and the Respondent shall submit a

Counter-Memorial. After the production of documents phase (Section 12 below), the

Claimant shall submit a Reply and the Respondent shall submit a Rejoinder. Each

pleading shall include allegations of facts and law in a detailed, specific and

comprehensive manner, together with all evidence upon which they rely such as

documents, witness statements, and expert reports.




10

The Disputing Parties may include with their Reply and Rejoinder submissions only 10.2

evidence responding to or rebutting matters raised by the other Disputing Party’s

immediately preceding written submission or documents produced by that other

Disputing Party with, or in the period following, that submission.

On the date on which the submission is due, the relevant Disputing Party shall submit 10.3

an electronic version of its written submissions, including its briefs, memorials, expert

reports and witness statements, and an index of its exhibits and legal authorities by e-

mail (in MS Word format or “searchable” PDF format) to the other Disputing Party, to

the Secretary to the Tribunal, and to each arbitrator.

Within three business days following the filing of its written submissions by e-mail, the 10.4

submitting Disputing Party shall send by courier one copy of its written submissions in

the format (A4/Letter or A5) to be advised (including exhibits) to the other Disputing

Party, to the Secretary to the Tribunal, and to each arbitrator. In addition, a USB key

containing the submissions, the exhibits and the legal authorities in electronic format (in

MS Word format or “searchable” PDF format) for each individual document (which

should be clearly labelled) shall be sent by courier to the other Disputing Party, to the

Secretary to the Tribunal, and to each arbitrator.

Submissions and correspondence shall be deemed to have been timely filed if sent via 10.5

electronic mail on or before midnight (in Washington and Ottawa) on the date due.

In instances where the Arbitral Tribunal orders simultaneous filings, the procedure shall 10.6

be as follows:

a) Each Disputing Party shall file its submission with the Secretary of the Tribunal and

the arbitrators by the agreed deadline.

b) Each Disputing Party shall then notify the other Disputing Party that it has filed its

submission.

c) The Secretary of the Arbitral Tribunal will hold the submissions until both

simultaneous submissions have been received. Once both submissions have been

received, the Secretary of the Tribunal will then circulate the submissions to the

Disputing Parties. Due to the agreed midnight deadline, it is understood that in some

cases the Disputing Parties may not receive the submissions until the following

morning. In such circumstances, the Secretary of the Tribunal will use best efforts to

circulate the submissions by 9 a.m. the following morning.




11

EXHIBITS AND LEGAL AUTHORITIES 11.

Articles 18(2), 19(4), 24 UNCITRAL Arbitration Rules (1976)

The Disputing Parties shall identify each exhibit and legal authority submitted to the 11.1

Arbitral Tribunal with a distinct number.

Each exhibit submitted by the Claimant shall commence with the letter “C” followed by 11.2

the applicable consecutive number, i.e. C-001, C-002, and so forth. Each exhibit

submitted by the Respondent shall commence with the letter “R” followed by the

applicable consecutive number, i.e. R-001, R-002, and so forth.

Each legal authority submitted by the Claimant shall commence with the letters “CL” 11.3

followed by the applicable consecutive number, i.e. CL-001, CL-002, and so forth.

Each legal authority submitted by the Respondent shall commence with the letters “RL”

followed by the applicable consecutive number, i.e. RL-001, RL-002, and so forth.

The Disputing Parties shall submit all hardcopy exhibits in files with separate tabs for 11.4

each exhibit.

It shall not be necessary for the Disputing Parties to submit hardcopies of their legal 11.5

authorities.

Each pleading shall be accompanied by a cumulative index hyperlinked to the 11.6

supporting exhibits and legal authorities.

The Disputing Parties shall submit all exhibits together with written submissions 11.7

expressly referring to them. As a general rule, the Arbitral Tribunal shall not receive any

evidence that has not been introduced with the written submissions.

In exceptional cases, the Arbitral Tribunal may allow a Disputing Party upon requesting 11.8

leave and after hearing the other Disputing Party, to submit additional exhibits at a later

stage of the proceedings if appropriate in view of all the relevant circumstances. The

requesting Disputing Party may not annex the documents that it seeks to file to its

request.

The use of demonstrative exhibits in aid of argument (such as charts or tabulations) will 11.9

be allowed at oral hearings, provided that no new evidence is contained therein, and

that such exhibits include citations to the relevant record. A hard copy of any such

demonstrative exhibit shall be simultaneously provided by the Disputing Party

submitting such exhibit to the other Disputing Party, to the Secretary of the Arbitral




12

Tribunal, and to each arbitrator.

All documents, including both originals and copies, submitted to the Arbitral Tribunal 11.10

shall be deemed to be authentic unless disputed by the other Disputing Party, in which

case the Arbitral Tribunal will determine whether authentication is necessary.

The Disputing Parties shall either submit all documents to the Arbitral Tribunal in 11.11

complete form or indicate the respects in which any document is incomplete.

DOCUMENT PRODUCTION 12.

On the relevant dates set forth in the Procedural Calendar (Annex B): 12.1

a) Each Disputing Party may serve a request for production of documents on the

other Disputing Party. Every request for production of documents shall

precisely identify each document, or category of documents, sought and

establish its relevance. Such a request shall not be copied to the Arbitral

Tribunal or the Tribunal Secretary;

b) If and to the extent that a Disputing Party objects to the production of requested

document(s), that Disputing Party shall submit such objection in writing to the

requesting party only;

c) The Disputing Party which made the request shall comment in writing on any

objection and submit the completed Redfern Schedule referred to in Section

12.2 below to the Secretary of the Tribunal and Arbitral Tribunal, with a copy to

the other Disputing Party (in both Word and PDF formats);

d) The Arbitral Tribunal shall decide on any objections to production of requested

documents; and

e) The Disputing Parties shall produce all documents for which no objection is

sustained by the Arbitral Tribunal.

The request, responses or objections to the request, the reply to the responses or 12.2

objections to the request, and the Arbitral Tribunal’s decisions referred to in this

Section shall be recorded in the Redfern Schedule attached at Annex A of this Order.

This format shall be used with respect to the writings referred to in this Section, but




13

may be accompanied by a separate letter or brief in a format other than the Redfern

Schedule.

Documents shall be disclosed in response to such a request in electronic format only 12.3

by sending via courier by the date fixed by the Arbitral Tribunal for such disclosure, a

CD-ROM, USB key or other similar media containing the documents in electronic

format with each individual document clearly labelled with a unique identifying number.

The media should also contain an index of the documents contained.

Documents so disclosed shall not be considered to be part of the record unless and 12.4

until one of the Disputing Parties subsequently submits them in evidence to the Arbitral

Tribunal in accordance with Section 11.

In addition, the Arbitral Tribunal may of its own motion order a Disputing Party to 12.5

produce documents at any time.

Each Disputing Party may withhold from disclosure documents which it considers not 12.6

subject to production based on a legal impediment or privilege, or special political or

institutional sensitivity. If a Disputing Party withholds documents on one of these

bases, it shall submit to the other Disputing Party either: (a) a log identifying such

documents (or categories of documents) and the grounds for withholding; or (b)

redacted versions of such documents identifying the grounds for withholding. Either

Disputing Party may apply to the Arbitral Tribunal to resolve a question regarding the

sufficiency of a log or redaction submitted under this Section.

Any disputes regarding the withholding of documents on the basis of a legal 12.7

impediment or privilege, or special political or institutional sensitivity shall be resolved

by the Arbitral Tribunal. In considering whether to exclude from production any

documents on the grounds of a legal impediment or privilege, or special political or

institutional sensitivity, the Arbitral Tribunal may consider, but is not bound by, Article 9

of the IBA Rules on the Taking of Evidence in International Commercial Arbitration

(2010).

In exceptional circumstances, if the propriety of an objection can be determined only by 12.8

review of the document, the Arbitral Tribunal may determine that it should not review

the document. In that event, the Arbitral Tribunal may, after consultation with the

Disputing Parties, appoint an independent and impartial expert (“Confidentiality

Advisor”), bound to confidentiality, to review any such document and to report on the

objection. To the extent that the objection is upheld by the Arbitral Tribunal, the

Confidentiality Advisor shall not disclose to the Arbitral Tribunal or to the other

Disputing Party the contents of the Document reviewed. Any such Confidentiality




14

Advisor shall be required to sign an appropriate confidentiality undertaking.

WITNESSES 13.

Articles 15(2) and 25 UNCITRAL Arbitration Rules (1976)

Any person may present evidence as a witness, including a Disputing Party or a 13.1

Disputing Party’s officer, employee, or other representative.

For each witness, a written and signed witness statement shall be submitted to the 13.2

Arbitral Tribunal. The Arbitral Tribunal shall not admit testimony of a witness who has

not submitted a written witness statement, unless the Arbitral Tribunal determines that

extraordinary circumstances exist and upon a showing of good cause. If such

testimony is admitted, the opposing Disputing Party shall be given an appropriate

opportunity to respond to such testimony.

Witness statements shall be submitted together with the Disputing Parties’ written 13.3

memorials. The witness statements shall be numbered separately from other

documents and include each witness’ surname (e.g. “CWS (Claimant’s witness

statement) - [surname of witness]”). Where a witness submits more than one witness

statement, his or her subsequent witness statements shall be numbered accordingly

(e.g. “CWS - [surname of witness] - 2”).

Each witness statement shall state: (1) the name and address of the witness; (2) his or 13.4

her relationship to, and interest in, any of the Disputing Parties in this arbitration; and

(3) the substance of the evidence that the Disputing Party will present through the

testimony of the witness at the hearing. Each witness statement shall be signed by the

witness, providing the date and place of signature.

By the date set forth in the Procedural Calendar (Annex B), each Disputing Party shall 13.5

notify the other Disputing Party, with a copy to the Arbitral Tribunal and Tribunal

Secretary, which witnesses of the opposing Disputing Party it wishes to cross-examine

at the hearing. The Arbitral Tribunal will then indicate the witnesses not called by the

Disputing Parties whom it wishes to question, if any.

Each Disputing Party shall be responsible for summoning its own witnesses to the 13.6

applicable hearing, except when the other Disputing Party has waived cross-

examination of a witness and the Arbitral Tribunal does not direct his or her

appearance.




15

Each Disputing Party shall cover the costs of appearance of its own witnesses (except 13.7

with respect to interpretation, addressed in Section 8 above). The Arbitral Tribunal will

decide upon the appropriate allocation of such costs in the final award or at the time

the arbitration is concluded.

If a witness cannot appear during the scheduled dates or without notice fails to appear 13.8

when first summoned to a hearing, the Arbitral Tribunal may, at its discretion, summon

the witness to appear a second time, if it is satisfied that: (1) there was a compelling

reason for the witness’ first failure to appear; (2) the testimony of the witness is relevant

to the adjudication of the dispute; and (3) providing a second opportunity for the

witness to appear will not unduly delay the proceeding.

The Arbitral Tribunal may consider the witness statement of a witness who provides a 13.9

valid reason for failing to appear when summoned to a hearing, having regard to all the

surrounding circumstances, including the fact that the witness was not subject to cross-

examination. A witness who is not called for cross-examination has a valid reason not

to appear. The Arbitral Tribunal may decline to consider the witness statement of a

witness who fails to appear and does not provide a valid reason.

Witnesses shall be examined in person except in exceptional circumstances as 13.10

determined by the Arbitral Tribunal.

At any hearing the examination of each witness shall proceed as follows: 13.11

a) the Disputing Party summoning the witness may briefly examine the witness for

the purpose of introducing the witness, correcting, if necessary, any errors in

the witness statement and addressing matters arising after the witness

statement was given, if any;

b) the adverse Disputing Party may then cross-examine the witness;

c) the Disputing Party summoning the witness may then re-examine the witness

with respect to any matters or issues arising out of the cross-examination. At

the discretion of the Arbitral Tribunal, the adverse Disputing Party may re-cross

examine the witness, with the re-cross examination limited to the witness’

testimony on re-examination; and

d) the Arbitral Tribunal may examine the witness at any time, either before, during

or after examination by one of the Disputing Parties.




16

During the Pre-hearing Conference, the Arbitral Tribunal in consultation with the 13.12

Disputing Parties shall determine which witnesses may be present in the hearing room

during oral statements and testimony, and the order in which such witnesses shall be

examined.

It shall not be improper for counsel to meet witnesses and potential witnesses to 13.13

establish the facts, prepare the witness statements, and prepare the examinations.

Once direct examination begins, a witness shall remain sequestered from counsel until

his or her testimony is complete.

EXPERTS 14.

Article 15(2) UNCITRAL Arbitration Rules (1976)

Each Disputing Party may retain and submit the evidence of one or more experts to the 14.1

other Disputing Party, the Secretary to the Arbitral Tribunal and the Arbitral Tribunal.

Expert reports shall be accompanied by any documents or information upon which they

rely, unless such documents or information have already been submitted as exhibits

with the Disputing Parties’ memorials, in which case reference to such exhibits shall be

sufficient. The procedural rules set out in the above Section 13 shall apply by analogy

to the evidence of experts.

Each expert report shall include the information listed in Section 13.4 above, as well as 14.2

a statement of qualifications of the expert in the claimed area of expertise. Each expert

report shall attach a current curriculum vitae evidencing such qualifications.

PROCEDURAL REQUESTS 15.

All procedural requests shall be made in writing. Unless otherwise ordered by the 15.1

Arbitral Tribunal, the other Disputing Party shall have five business days, not including

the day on which the request was made, to reply in writing to a request. No further

submissions on a request shall be made by either Disputing Party without the express

authorization of the Arbitral Tribunal in advance.




17

NOTIFICATIONS AND COMMUNICATIONS 16.


Each Disputing Party shall address all communications, submissions and documents 16.1

directly and simultaneously to each member of the Arbitral Tribunal, with a copy to the

other Disputing Party and the Secretary to the Tribunal, subject to Section 10.6.

All notifications and communications in this arbitration shall be valid, provided that they 16.2

are made: in the case of the Arbitral Tribunal, to each of its members at the addresses

set out in Section 3 above, or as subsequently notified during the course of the

proceedings; in the case of the Disputing Parties, to their respective counsel at the

addresses set out in Section 2 above, or as subsequently notified during the course of

the proceedings. Any changes in the addresses or other particulars set out in Section

2 above shall be notified to the Disputing Parties’ counsel, the Arbitral Tribunal and the

Secretary to the Tribunal. Prior to the receipt of such notification, all communications

and notifications may be validly made to addresses set out in Section 2 above.

Subject to Section 10.4 above, all notifications and communications by the Disputing 16.3

Parties and by the Arbitral Tribunal, except for awards, shall be made, by e-mail.

NON-DISPUTING NAFTA PARTIES 17.

Article 1128 NAFTA

The Governments of Mexico and the United States may make submissions to the 17.1

Arbitral Tribunal within the meaning of Article 1128 of the NAFTA by the date indicated

in Annex B. Pursuant to Articles 1127, 1128 and 1129 of the NAFTA, non-disputing

NAFTA Parties may attend oral hearings, and are entitled to receive a copy of

confidential versions of transcripts, written submissions and exhibits, including witness

statements and expert reports. Non-disputing NAFTA Parties shall be made aware of

the Confidentiality Order, and pursuant to Article 1129 of the NAFTA, shall treat all

information received from the Respondent as if they were a disputing Party, notably in

respect of protection of confidential information.

The Disputing Parties shall have the opportunity to comment on any Article 1128 17.2

submission by the relevant date indicated in Annex B.




18

AMICI 18.

If a request for the submission of an amicus curiae brief is filed by the date indicated in 18.1

Annex B, the Arbitral Tribunal will give the appropriate directions in the exercise of its

powers under Article 15 of the UNCITRAL Arbitration Rules (1976) and take into

consideration the recommendation of the North American Free Trade Commission on

non-disputing party participation of 7 October 2003.

By the relevant dates indicated in Annex B, the Disputing Parties shall have the 18.2

opportunity to: (1) make submissions on any request for the submission of an amicus

curiae brief; and (2) file simultaneous observations on issues raised in any amicus

curiae brief submitted pursuant to a decision of the Arbitral Tribunal.

CALENDAR 19.

The Procedural Calendar of this arbitration is attached as Annex B and made an 19.1

integral part of this Order.

STATUS OF ORDERS 20.


Any Order of the Arbitral Tribunal may, at the request of a Disputing Party or at the 20.1

Arbitral Tribunal’s own initiative, be varied if the circumstances so require.

FEES AND EXPENSES OF THE MEMBERS OF THE ARBITRAL TRIBUNAL 21.

Article 39 UNCITRAL Arbitration Rules (1976); ICSID Schedule of Fees; ICSID

Administrative and Financial Regulation 14

Subject to revision, the time spent on this arbitration by the members of the Arbitral 21.1

Tribunal shall be compensated at the rate of USD $3,000, or such other fee as may be

set forth from time to time in the ICSID (Schedule of Fees), for each day of participation

in meetings of the Arbitral Tribunal of eight hours of other work performed in connection

with the proceeding or pro rata.

All direct travelling expenses reasonably incurred in relation to the arbitration shall be 21.2

reimbursed within the limits set forth in Regulation 14 of the ICSID Administrative and




19

Financial Regulations and The Memorandum on the Fees and Expenses of ICSID

Arbitrators.

Subject to the disbursement of any fees and expenses from the sums deposited in 21.3

accordance with Section 22, all fees and expenses shall be paid within 30 days of their

quarterly invoice. The Arbitral Tribunal may withhold any award or decision until such

fees and expenses have been paid.

APPORTIONMENT OF COSTS AND ADVANCE PAYMENTS 22.

Article 41 UNCITRAL Arbitration Rules (1976); ICSID Administrative and Financial

Regulation 14

Without prejudice to the final decision of the Arbitral Tribunal regarding costs, the 22.1

Claimant and the Respondent agree to share equally advance payments for the fees

and costs of the Arbitral Tribunal and of ICSID as administering authority. Upon the

issuance of an award, the Arbitral Tribunal may apportion the costs of the arbitration

between the Disputing Parties if it determines apportionment is reasonable under the

circumstances of the award.

By letter of 17 April 2014, ICSID requested that each Disputing Party pay US$100,000 to 22.2

defray the initial costs of the proceeding. ICSID received the Claimant’s payment on 5

May 2014 and the Respondent’s payment on 6 May 2014. ICSID shall request further

advances as needed. Such requests shall be accompanied by a detailed interim statement

of account.

PRE-HEARING CONFERENCE 23.

A pre-hearing conference shall be held on the date indicated in Annex B by telephone or 23.1

videoconference between the Arbitral Tribunal, or its President, and the Disputing Parties

in order to resolve any outstanding procedural, administrative, and logistical matters in

preparation for the hearing.

RECORD OF HEARINGS 24.


The hearing on the merits shall be open to the public, except when necessary to 24.1




20

protect confidential information. The hearing shall be made accessible to the public in

real time via closed-circuit television broadcast to a World Bank room other than the

room in which the hearing is held, subject to a time delay and any other arrangements

needed to safeguard confidential information.

Sound recordings shall be made of all hearings and sessions. The sound recordings 24.2

shall be provided to the Disputing Parties and the Members of the Arbitral Tribunal.

Verbatim transcripts in English shall be made of any hearing other than hearings on 24.3

procedural issues.

Live Note transcription software, or comparable software, shall be used to make the 24.4

hearing transcripts instantaneously available to the Disputing Parties and Members of

the Arbitral Tribunal in the hearing room. The transcripts of proceedings should be

made available on a same day service basis where practicable.

The Arbitral Tribunal shall establish, as necessary, procedures and schedules for the 24.5

correction of transcripts. If the Disputing Parties disagree on corrections to be made to

transcripts, the Arbitral Tribunal shall determine whether or not any such corrections

are to be adopted.

POST-HEARING MEMORIALS AND STATEMENTS OF COSTS 25.

Articles 22, 38, 40(3) UNCITRAL Arbitration Rules (1976)

At the pre-hearing conference, or during the course of the hearing, it shall be decided 25.1

whether the Disputing Parties shall file Post-Hearing Memorials and/or Reply Post-

Hearing Memorials.

At the pre-hearing conference, the Arbitral Tribunal, in consultation with the Disputing 25.2

Parties, shall decide when and in what form the Disputing Parties will file evidence

regarding the quantification of the costs of arbitration.

QUORUM 26.


The presence of all three members of the Arbitral Tribunal shall constitute a quorum 26.1

and shall be required to conduct proceedings unless the Disputing Parties agree




21

otherwise.

In cases of urgency, the presiding arbitrator may decide procedural matters alone, after 26.2

reasonable efforts to consult with the other members of the Arbitral Tribunal.

DECISIONS OF THE ARBITRAL TRIBUNAL 27.


Subject to Section 26, the Arbitral Tribunal shall make any award or other decision by a 27.1

majority of its members.

All awards and decisions shall be deemed to be made at the legal seat of the 27.2

arbitration, regardless of where the award or decision is signed.

TIME LIMITS 28.


The Arbitral Tribunal shall, in consultation with the Disputing Parties, fix the time limits 28.1

in respect of all documents to be filed. In case of urgency, the President may fix a time

limit or amend an existing time limit.

CONFIDENTIALITY AND PRIVACY 29.

Annex 1137.4, NAFTA Chapter 11; Note of Interpretation of the NAFTA Free Trade

Commission of 31 July 2001

Matters concerning confidentiality and privacy of the arbitral proceedings, rulings, 29.1

orders, decisions and awards shall be the subject of a separate Confidentiality Order.

PUBLICATION 30.

Annex 1137.4, NAFTA Chapter 11; Note of Interpretation of the NAFTA Free Trade

Commission of 31 July 2001

In accordance with Annex 1137.4 of the NAFTA, the Note of Interpretation of the 30.1

NAFTA Free Trade Commission of 31 July 2001, and subject to the Confidentiality

Order, ICSID shall publish redacted, public versions of pleadings and written




22

submissions of the Disputing Parties and decisions of the Arbitral Tribunal, including

the Notice of Arbitration, Statements, Memorials, witness statements, transcripts of

hearings, procedural rulings and Orders and Awards.

DISPOSAL OF THE RECORD 31.

Six months after the Arbitral Tribunal has notified the final award to the Disputing 31.1

Parties, the arbitrators shall be at liberty to dispose of the record of the arbitration,

unless the Disputing Parties ask that the documents be returned to them or to their

counsel, which will be done at the expense of the requesting Disputing Party.

IMMUNITY FROM SUIT 32.

The Disputing Parties shall not seek to make the Arbitral Tribunal or any of its 32.1

members liable in respect of any act or omission in connection with any matter related

to this arbitration, save where the act or omission is shown by that party to constitute

conscious and deliberate wrongdoing. The Disputing Parties shall not require any

member of the Arbitral Tribunal to be a party or witness in any judicial or other

proceedings arising out of or in connection with this arbitration.

Date: 26 May 2014

For the Arbitral Tribunal

[Signed]

___________________________

Professor Albert Jan van den Berg




23

ANNEX A

Model Redfern Schedule for Document Disclosure

Requesting Party: _______________

1 2 3 4 5 6

No. Documents or

Category of

Documents

Requested

Relevance and

Materiality

According to

Requesting Party

Responses / Objections to

Document

Request

Reply to

Objections to

Document

Request

Arbitral Tribunal’s

Decisions

Ref. to

Submissions,

Exhibits,

Witness

Statements

or Expert

Reports

Comments




24

ANNEX B

Procedural Calendar

Description By Days Date PO1 §

First Procedural Hearing All Sat 10-May-2014 1.1

Draft Procedural Order No. 1 Tribunal 4 Wed 14-May-2014

Comments on Draft Procedural Order No. 1

Claimant and Respondent

9 Fri 23-May-2014

Final Procedural Order No. 1 Tribunal 3 Mon 26-May-2014

Letter designating the Notice of Arbitration as the Statement of Claim

Claimant 4 days from first hearing

Wed 14-May-2014 10.1

Statement of Defense Respondent 47 Mon 30-Jun-2014 10.1

Memorial on Liability and Jurisdiction

Claimant 91 Mon 29-Sep-2014 10.1

Counter-Memorial on Liability and Jurisdiction

Respondent 120 Tue 27-Jan-2015 10.1

Production of Documents Phase

Requests for Production of Documents


21 Tue 17-Feb-2015 12.1(a)

Objections Claimant and Respondent

21 Tue 10-Mar-2015 12.1(b)

Responses to Objections Claimant and Respondent

14 Tue 24-Mar-2015 12.1(c)

Decision on Requests Tribunal 14 Tue 07-Apr-2015 12.1(d)

Production of Non-Objected Documents and as Ordered


76 Mon 22-Jun-2015 12.10(e)

Reply on Liability and Jurisdiction

Claimant 81 Fri 11-Sep-2015 10.1

Rejoinder on Liability and Jurisdiction

Respondent 88 Tue 08-Dec-2015 10.1




25

Description By Days Date PO1 §

Deadline for NAFTA Article 1128 submissions and for applications for leave to file non-disputing party (amicus) submissions, if any

TBD 45 Fri 22-Jan-2016 17.1, 18.1

Comments on applications for leave to file non-disputing party (amicus) submissions, if any


7 Fri 29-Jan-2016 18.2

Decision on applications for leave to file non-disputing party (amicus) submissions, if any

Tribunal 21 Fri 19-Feb-2016 18.1

Comments on non-disputing party (amicus) submissions and NAFTA Article 1128 submissions on non-disputing party (amicus) submissions, if any

Claimant and Respondent; TBD

21 Fri 11-Mar-2016 17.2, 18.2

Notification of Witnesses and Experts


TBD 13.5, 14.1

Notification of Witnesses and Experts not Called

Tribunal TBD 13.5, 14.1

Pre-Hearing Telephone Conference

All TBD 23

Hearing Commencement All Mon 30-May-2016 24

Hearing Ends All 10 Thu 09-Jun-2016 24

Simultaneous Post-Hearing Submissions, if any


TBD 25.1

Simultaneous Reply Post-Hearing Submissions, if any


TBD 25.1

Simultaneous Cost Submissions Claimant and Respondent

TBD 25.2

Partial Award on Liability Tribunal TBD 27

[Organizational Conference to Determine the Procedural Calendar for the Quantum Phase]

All TBD